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Jurado v. Western Gear Corp.

Decided: January 22, 1992.

ALFONSO JURADO, PLAINTIFF-RESPONDENT-CROSS-APPELLANT, AND MARLENE JURADO, PLAINTIFF,
v.
WESTERN GEAR CORPORATION AND BUCYRUS-ERIE COMPANY, DEFENDANTS-APPELLANTS-CROSS-RESPONDENTS, AND WESTERN GEAR WORKS, ORVILLE DUTRO AND SONS, BUCYRUS-ERIE CORPORATION, JOHN DOE, RICHARD ROE, ABC CORPORATION, XYZ CORPORATION, SAID NAMES BEING FICTITIOUS, DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

J.h. Coleman and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

KEEFE, J.A.D.

In this product liability action, defendants Western Gear Corporation and Bucyrus-Erie Company (referred to herein collectively as "defendant"), appeal from the entry of a judgment in favor of the plaintiff notwithstanding the verdict.*fn1 Plaintiff, Alfonso Jurado, cross-appeals from the trial court's denial of his motion for a new trial on the issue of damages. For the reasons stated herein we affirm the judgment notwithstanding the verdict but reverse the judgment denying plaintiff's motion for a new trial and remand for a trial on damages.

Plaintiff, an employee of N & W Printing, was injured while operating a collator machine manufactured by defendant. He was assigned to operate the machine by his employer and had been doing so for several years prior to the accident.

The machine, as its name indicates, was used to collate and assemble business forms with up to eight parts. Continuous rolls of paper were fed into the machine to the end that when the paper was properly cut and glued a fully assembled multi-sheet business form would result. At or near the end of the process, the perforated edge of the form (necessary for the feeding process but unnecessary for the final form), was removed by a rotating knife as the paper was fed through a rotating cylinder. The excess paper, called "salvage," entered a vacuum tube positioned below the table. The salvage was then discharged through piping supplied by the employer to a disposal bind also provided by the employer.

Plaintiff testified that the vacuum tube attached to the disposal unit would occasionally block from the build-up of salvage, requiring the operator to unclog it. Usually this could be done by using a blade-like tool apparently furnished by the employer. However, on occasion, the blade could not dislodge the material and the operator would then be required to remove it manually. According to plaintiff, the process of clearing the vacuum tube could only be accomplished by reaching under the table because the mouth of the tube was located just beneath the work surface.

The vacuum tube was positioned in close proximity to the aforementioned rotating cylinder. In the same vicinity of the cylinder and vacuum tube beneath the table, there was a metal support bar which ran across the width of the machine. The proximity of the metal support bar and the rotating cylinder created what the expert witnesses in the case described as an "in-running nip point."

On the day of the accident, scraps of salvage became stuck in the vacuum tube. Plaintiff reduced the speed of the machine and attempted to use the blade to clear the tube. He was unable to do so and attempted to remove the salvage with his hand. In doing so he either had to crouch or kneel and reach under the table and upward toward the opening of the tube. As he was attempting to dislodge the salvage, he lost his balance and in an effort to regain it reached out with his right hand. His right hand became caught in the nip point between the cylinder and the support bar.

Although an on/off switch was located at the operator's station close to where this accident occurred, plaintiff testified that his employer had instructed him not to turn the machine off when clearing the salvage because a shut down would ruin the sequence of the collation process. This fact was disputed by his employer.

Plaintiff's expert Gerald Weiner, a mechanical engineer specializing in machine design, testified that the machine was

defective because the in-running nip point was unguarded and there was no warning about the danger of dislodging the clogged salvage without first turning off the machine. Weiner testified that a sheet metal guard would be easy to fabricate, would be inexpensive and would not affect the function of the collator. He reasoned that guarding was necessary in this instance because of the likelihood that the vacuum system would clog and the operator would have to manually dislodge the salvage.

The defense expert, Edward Schwalje, acknowledged that there was an in-running nip point where plaintiff's injury occurred. While acknowledging that in-running nip points are normally guarded when they are in the operating area or where inadvertent contact can occur, he believed that this nip point was guarded by its location. An area is guarded by location, according to Schwalje, when it is inaccessible in the normal activity of operating the machine. In his view, it took a deliberate effort to reach the nip point in question. He said that the collator was not intended to be accessed while it was in operation because it was designed to be stopped for that purpose. He reasoned that warnings would also be unnecessary in view of ...


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